Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MIR KABAL VS Respondent: THE STATE And Another
Court Name: Lahore High Court Judge(s): Raja Abdul Aziz Bhatti Title: MIR KABAL vs THE STATE And Another Case No.: Criminal Appeal No.49 of 1988 Date of Judgment:1995-09-18 Reported As: 1997 MLD 1097 Result: Order accordingly
JUDGMENT
JUDGMENT This judgment will dispose of Criminal Appeal No.49 of 1988, Criminal Appeal No.50 of 1988 and Criminal Revision No.58 of 1988. All the three cases are connected and pertain to one occurrence. Brief facts of the case are that Noor Muhammad Inspector (P.W.13) th6, then SHO Bhara Kahu, Islamabad received a wireless message on 22-6-1986 at 6.20 a.m. From Aftab Hussain Shah HC (P.W.2) who was posted at Check Post Alipur Frash. The message was to the effect that a man was murdered and dead body was lying on the road. The accused who committed the crime, fled away on a Moris Taxi No.RIL-973. He recorded rapt at Sr. No.30 dated 22-6-1986 (Exh.PY) and proceeded to the spot on official vehicle No.ID-1827 alongwith Nasrullah Khan SI, Zafar Iqbal, Muhammad Yasin, Muhammad Younis and Batan Khan constables. 2. Hassan Akhtar Hussain, complainant (P. W.11) resident of Morian made a statement before Noor Muhammad Inspector at the spot alleging that he was employed in 501 Workshop Rawalpindi as fitter while Muhammad Ramzan alias Mundri deceased of this case resident of his village and closely related to him, was employed in Secretariat No.2, Rawalpindi as Naib Qasid. They used to go to Rawalpindi from their home daily. On the day of occurrence in the morning Muhammad Ramzan deceased accompanied him were going to Rawalpindi, sitting on the back seat of his Cycle. At about 6.15 a.m. When they reached near the house of Shabbir Shah situated in Bain Syedan Dakhali Frash, there was an ascent on the road for which they had to get down from the Cycle. While they were walking on foot having Cycle a Moris Taxi No.RIL-973 came from behind. Kabal Khan, Muhammad Akhtar and Iqbal accused were found in the said Taxi. They crossed them and near a turn they alighted from their taxi and stood close to the wall. Muhammad Ramzan alias Mundri when reached near the southern gate of the house of Shabbir Shah, all of a sudden, Kabal Khan
---
## Page 2
armed with .12 bore gun, Muhammad Akhtar accused armed with .12 bore pistol and Muhammad Iqbal accused armed with revolver appeared from the western side of the wall. Kabal Khan accused raised Lalkara to Muhammad Ramzan deceased that today he would take revenge of the murder of his father. Simultaneously, he fired with his gun at Muhammad Ramzan from close range which hit him on his chest and he fell down. He went forward in order to rescue Muhammad Ramzan deceased when Muhammad Iqbal accused aimed the revolver at him and warned him that if he wanted to save his life, he should go back, otherwise, he would also meet the same fate. During this, Muhammad Sakhi and Muhammad Younis P.Ws., appeared there from behind on a tractor. Muhammad Akhtar accused fired with his pistol at Muhammad Ranizan deceased which hit him on his mouth. Muhammad Ramzan deceased died at the spot. Thereafter, Muhammad Iqbal accused fired with his revolver. The total occurrence was witnessed by Muhammad Sakhi and Muhammad Younis P.Ws. Besides the complainant. After occurrence the accused ran away towards western side on foot. 3. The motive behind this occurrence is stated to be that about some years back Mohabat Khan father of Kabal Khan accused was murdered in which Muhammad Ranizan deceased was also challaned alongwith other two persons. But later on acquitted. Hence Muhammad Ranizan alias Mundri has been done to death by these accused while armed with deadly weapons of offence, with pre--planning and having common attention. According to prosecution Muhammad Ramzan deceased had a licensed pistol with him but unfortunately at that time he could not use it. The complainant further stated that after the occurrence he alongwith Aftab Hussain Shah, HC remained at the spot to guard the dead body. On arrival, Noor Muhammad Inspector prepared the complaint Exh.PD/1 on the statement of Hassan Akhtar Hussain complainant and sent the same to the Police Station for registration of formal F.I.R. Exh.PD. He investigated the case. He stated that when he reached at the place of occurrence Hassan Akhtar Hussain complainant alongwith Sakhi Muhammad P.W., Aftab Hussain Shah and some other persons were present there. He recorded statement Exh.PD/1 which was read over to him and signed in token of its correctness and formal F.I.R. Was got registered. He prepared injury statement of the dead body of Muhammad Ramzan alias Mundri Exh.PE and inquest report Exh.PF. On personal search of the dead body, he recovered a pistol, cartridges and other articles mentioned in the recovery memo. Exh.PX. He sent the dead body for postmortem examination under the escort of Muhammad Yasin and Zafar Iqbal constables. Blood-stained earth was taken into possession from the spot and made the same into sealed parcel vide memo. Exh.PU in presence of Hassan Akhtar Hussain and Shujat Muhammad P.Ws. One empty cartridge Exh.P9 was also recovered and taken into possession. Its sealed parcel vide memo. Exh.PV was prepared in presence of the witnesses. Muhammad Yasin constable produced before him clothes P.1 to P.4, pair of chappel P5/1-2 of the deceased and a sealed phial P.6 containing a led bullet with sample of the seal after the post mortem examination which were taken into possession by him vide memo. Exh.P.G. He also produced before him post-mortem report Exh.PJ, injury statement Exh.PE and inquest report PF. On the same date, he handed over both the sealed parcels to Shahjahan Moharrar intact. On 30-6-1986 Abdul Hafeez P.W. Reported to him that his Taxi No.RIL-973 was present in the fields of one Azad Lumberdar of Chatha Bakhtawar. He led him to that place and recovered the taxi from there vide memo. Exh. PT. A receipt Exh. PR was also produced before the I.O. Which was taken by him vide memo. Exh.PS. 5. Mir Kabal and Muhammad Iqbal accused were arrested on 28-6-1986 while Akhtar Hussain accused on 1-7-1987. On disclosure of Mir Kabal he led to the recovery of gun from his house which is P7. The gun was produced by him when this was lying in bedding to under the beds. The gun was made into a sealed parcel and taken into possession vide memo. Exh.PN. Site plan of the recovery was also prepared vide Exh. PN/1. He also prepared site plan Exh.PT/A of the place of recovery of
---
## Page 3
taxi. On the same day, Akhtar Hussain accused also disclosed about the pistol for which he led the police party for recovery from his house and taken into possession vide memo. Exh.P.8. On 3-7- 1986, Muhammad Ashraf Patwari was taken to the spot and on the direction and pointation of the witnesses he took notes of the spot and prepared site plan. Before the Court, statement was given to this effect by the Patwari as well as I.O. On 16-7-1986 Abdul Hafeez P. W. Produced registration book of the taxi Exh. PA, route permit Exh.PB and the insurance certificate Exh.PC. He also collected copies of F.I.Rs. Exhs.PH, PK, PL, PM with regard to the motive of this case. During investigation Akhtar Hussain and Mir Kabal were found guilty while Muhammad Iqbal was found innocent. However all the three accused were challaned and the name of Muhammad Iqbal was placed in column No.2 of the challan. 6. The dead body was taken to the Federal Government Services Hospital on 22-6-1986 at 4.30 p.m. Dr. Fazal-ur-Rehman, Medical Officer held postmortem examination. The dead body was brought to Hospital by Zafar lqbal and Muhammad Yasin constables. At that time Muhammad Maskeen father of the deceased identify the dead body. According to the postmortem report, the eyes were half opened and mouth was opened. P.M. Staining was positive. Rigormortis was also present. According to the Doctor following injuries were present on the person of the deceased:---- (1) Lacerated wound over the upper lip, with tissue lost 4 c.m. x 2 c.m. (2) Lacerated wound over lower lip 3 c.m. x 2 c.m. (3) Circular wound at the level sternal angle about 4 c.m. x 4 c.m. Edges inverted. A pellet lying in front of prevertabral fashia was recovered. Three cards weds were also recovered. There was fracture of 7th and 8th ribs on the left side. Four pellets were recovered from the posterior chest wall under the sub cutaneious facia. Plaereau of the right lung was ruptured. Extensive penetrated wound of the heart damaging the pericardium and heart muscles. The remaining organs were healthy. 7. In his opinion, the deceased died of injury No.3 causing damage to vital organs i.e. Heart and lungs. The injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem and caused by fire--arm. The probable time between injury and death was immediate and between death and postmortem was within 12 hours. After postmortem examination, he handed over the dead body, postmortem report and other documents, the clothes of the deceased and a sealed phial containing pellets to the police. Exh. PJ is the carbon copy of his postmortem report. It is in his hand and contained his signatures. Exhs.PJ/1 and PJ/2 is the seat of the injuries. The police constables also produced before him the injury statement Exh.PE and inquest report Exh. PF which he returned with his signatures. The clothes P1 to P4 and sealed phial P6 are the same which he handed over to the police constable, after the postmortem examination. 8. During trial the accused were charged under section 302/34, P.P.C., which they pleaded not guilty. The prosecution produced 13 witnesses in order to prove this case. 9. Shahjahan S.I. Appeared as P.W.1. He kept sealed parcel containing blood-stained earth and empty cartridges for safe custody which he handed over to Zafar Iqbal constable for taking the same to the office of the Chemical Examiner and the Director Forensic Science Laboratory. On 2-7- 1986 he received sealed parcels of pistol and gun which he kept in the Malkhana. On 6-7-1986 he handed over both the said parcels to Zafar Iqbal constable for taking the same in the office of the Director Science Laboratory. According to him no body tampered the parcels. On 16-7-1986 Abdul Hafeez produced registration book of the Taxi Exh.PA, route permit Exh.PB and the insurance certificate Exh.PC. He also recorded the formal F.I.R. Exh.PD. 10. Aftab Hussain Shah HC appeared as P.W.3. He stated that on 22-6-1986 while he was posted on Check Post, Alipur, at about 6.15 a.m. He heard a fire report. On hearing the fire report he went towards the street and on the corner of the street, he found Muhammad Ramzan alias Mundri deceased lying there dead. Information was conveyed to Police Station Bhara Kahu through
---
## Page 4
wireless. He remained to guard the deed body at the spot. When Noor Muhammad SHO arrived there, dead body was handed over to him. No body tampered with dead body till the arrival of SHO. 11. Zafar Iqbal constable appeared as P.W.3. He made statement regarding the parcels. Muhammad Yasin HC appeared as P.4 who escorted the dead body to District Headquarter Hospital Rawalpindi for postmortem examination. Postmortem examination report, clothes etc. Were handed over to him, which he produced before the I.O. 12. Muhammad Zahir HC appeared as P.W.5. He produced original register of F.I.Rs. For the years 1973-74 containing F.I.Rs. From 71/73 to 44/74. 13. Dr. Fazal-ur-Rehman appeared as P.W.6. He proved the postmortem report. Muhammad Siddique ASI appeared as P.W.7. He produced register of F.I.Rs. Of Police Station Bhara Kahu for the year 1974. And proved F.I.R. No.8. The accused of the case were acquitted on 31-7-1975 as the case was withdrawn. He also brought on record F.I.R. No. 19. In this case Muhammad Ramzan alias Mundri was an accused. But he was acquitted by the Additional. Sessions Judge, Rawalpindi on 9- 7-1979 and the other accused Mehboob and Miran were also acquitted. 14. Muhammad Maskeen father of Muhammad Ramzan alias Mundri deceased appeared as P.W.8. He identified the dead body at the time of post--mortem. He witnessed the recovery of .12 bore gun which was recovered at the instance of Kabal Khan accused. He also deposed that Akhtar Hussain accused made the recovery of Pistol from his house. 15. Muhammad Ashraf Patwari appeared as P.W.9. He also made statement that he inspected the site and prepared site plan. He also made notes thereon. 16. Abdul Hafeez son of Qurban Hussain Awan appeared as P.W.10. He stated that taxi in question was hired by Akhtar Hussain accused. He claimed the ownership of the taxi in dispute. He stated that Akhtar Hussain accused present in the Court took the taxi on hire basis at the rate of Rs.100 per day. As the accused was driver, hence no driver was provided by him. The accused did not return him the taxi. But later on, this taxi was given to him by Police at Police Station Bhara Kahu. He produced receipt Exh.PR before the I.O. Which was taken into possession vide memo. Exh. PF. While appearing in the witness box he made confusing statement with regard to the persons who hired taxi from him. As such, on the request of APP he was declared hostile. On cross---examination by the learned APP he emphasized that accused Akhtar Hussain was the person who hired the taxi from him, as he pointed out to him while making statement in the Court. 17. This witness was also cross-examined by Akhtar Hussain accused. He stated that normally taxi car was driven by his driver. He admitted that Amin alias Mina is his cousin. He denied the suggestion that he had a quarrel with Mohabat etc. And a case under section 307, P.P.C. Was registered against him. The said Mohabat is related to Akhtar and Kabal accused. Again said that said Mohabat was father of Mir Kabal accused. He further denied that he never handed over his taxi to any body else without driver. He denied the suggestion that the accused had not taken taxi hired from him, he had deposed falsely. 18. Hassan Akhtar Hussain complainant appeared as P.W.11. Muhammad Sakhi, eye-witness appeared as P.W. 12 and supported the prosecution version. 19. Noor Muhammad, Inspector appeared as P.W.13 who carried out the investigation and after completion of usual investigation he challenged the accused in the Court to face trial. During investigation, Muhammad Iqbal accused was found innocent and he placed his name in column No.2 of the challan. The complaint Exh.PBB was tendered in evidence. The report of the Chemical Examiner Exh.PZ arid that of Serologist Exh.PAA were tendered in evidence and the prosecution case was closed. 20. The statements of the accused were recorded under section 342, Cr.P.C. In which they denied the allegations levelled against them. Akhtar Hussain and Mir Kabal accused disowned the recoveries. They also denied the motive for offence that father of Mir Kabal was murdered in which
---
## Page 5
case Muhammad Ramzan alias Mundri was one of the accused. However, Akhtar Hussain accused admitted that there was long standing enmity between the parties. Copies of the different F.I.Rs. Were placed on record. He admitted that Mir Kabal accused was son of his paternal aunt. But denied any relationship with Muhammad Iqbal accused. He even denied the hiring of the taxi. However, Mir Kabal accused admitted that Muhammad Ramzan alias Mundri deceased was challenged and tried in the murder case of his father and was acquitted from the Sessions Court. But he denied that he and his co-accused had any grievanceagainst the deceased. The other co- accused also made similar statement. None of them produced defence evidence. Here it may be mentioned that at the time of submission of challan the names of Kabal Khan and Akhtar Hussain were shown in column No.3 while the name of Muhammad Iqbal was mentioned in column No.2, as he was declared innocent during the investigation. The complainant party filed complaint before the Court against the aforesaid accused. In both the cases the parties were same, witnesses were same and the nature of the offence was also the same. Hence with the mutual consent of the learned counsel for the parties and learned APP both the cases were consolidated by the trial Court vide order dated 2-1-1988 and have been disposed of by one order. 21. The evidence and material brought on record by the prosecution mainly pertain the following places of evidence:----- (i) Ocular. (ii) Motive. (iii) Medical evidence. (iv) Recovery. 22. With the assistance of the learned counsel for the parties, record of the trial Court perused thoroughly. I also gone through the evidence produced by the prosecution. Every statement of prosecution witness was read out by the learned counsel for the appellant to evaluate the impact. 23. Learned counsel for the defence stated that as far as the motive is concerned, it is against Mir Kabal because allegedly his father was done to death by the deceased and his other two co- accused. About the medical evidence, it is' story of the prosecution that the deceased was fired at twice. The fire which hit him on the chest had been attributed to Mir Kabal whereas the second injury caused on the mouth had been attributed to Akhtar Hussain. According to prosecution Mir Kabal allegedly was armed with .12 bore gone while Akhtar Hussain was armed with .12 bore pistol. The injury attributed to Mir Kabal has been shown by the Doctor as fatal. Death occurred due to this injury. Some pellets were also recovered from the body of the deceased where the fire of Mir Kabal hit. There is controversy about the second fire injury which allegedly had been caused on the mouth of the deceased. The prosecution version is that Akhtar Hussain used his .12 bore pistol and fired from very close range on the mouth of the deceased. But quite surprisingly the site and dimension has been stated by the Doctor is as under;-- (i) Lacerated wound over the upper lip, which tissue lost 4 c.m. x 2 c.m. (ii) Lacerated wound over lower lip 3 c.m. x 2 c.m. Both these injuries are head joining almost on the mouth portion. The distance from which the fire was shot on the deceased as alleged with regard to these two injuries, there would have been a quite heavy loss of many tissues and there was a possibility that pellets must had gone inside the mouth causing severe damage. The medical evidence shows, that there was no pellets found inside around the portion where alleged fire hit. It was suggested to the Doctor as to whether this injury could be result of said pellets of the fire shot which hit the deceased on his chest. But no clarifying answer was given. Hence it is doubtful that there was second shot. Factual position seems to be that the mouth injury is also the result of stray pellet of the fire which caused injury on the chest of the deceased attributed to Amir Muhammad. Had this been independent one shot it would have caused quite severe damage of the mouth portion besides having inside wound in the
---
## Page 6
nearby portion of the body. To clarify it more, if the prosecution story to this extent is believed that there was second shot by Akhtar Hussain which hit the mouth of the deceased, then there would have been number of pellets around the mouth area causing severe damage, loss of tissues and there was all possibility that there would have been entry and exit wound. It is visualized on the ground that alleged fire was shot from very close range. The medical evidence on this score creatres convincing presumption that prosecution story to the extent of second shot is not believable. 24. Learned counsel for the defence also states that since there are some doubts in the medical evidence and the ocular evidence, hence the prosecution story is not reliable. He further stated that Cycle in question has not been produced before the Court during trial. This fact also damages the prosecution story. The prosecution also failed to prove the ownership of the taxi. The statement of Abdul Hafeez as P.W. Has no worth because he made certain changes and improvements in it. His name was not mentioned in the registration book. Even the name of the person who sold the car, his signatures are not traceable on the receipt. He maintains that other prosecution witnesses were not present at the place of occurrence. He prays that both the accused be acquitted and the revision petition against them be dismissed. 25. Learned counsel for the State assisted by a private counsel Kh. Muhammad Fayyaz Advocate stated that it is a day light occurrence. Names of the accused are also mentioned in the F.I.R. There is no delay in lodging the report. The presence of those witnesses is quite natural. As both of them were with the deceased. They were going to their duty in routine. Medical evidence fully supported the prosecution version. He insisted that second injury on the mouth of the deceased was caused by a fire shot of .12 bore pistol. He is of the view that there is no possibility of causing extraordinary damage of the mouth because the second fire was shot from very close range. Lastly he contends that there is strong motive for the commission of offence. He seeks that appeals of both the accused/convicts be dismissed, revision petition be accepted and necessary order be passed so that they be punished in accordance with law. 26. I have heard the arguments of the learned counsel for the parties and gone through the record minutely. In this case an important piece of evidence which needs adjudication with great care and caution is the medical evidence. Learned counsel for the defence vehemently pointed out about the absence of second shot. Repeatedly he read the narration of Doctor regarding the second injury which undoubtedly gave strong impression that it was not caused with an independent fire shot. It is a result of fire shot of Mir Kabal which hit on the chest of the deceased. Thus it caused damage upper and lower lips of the deceased. Fire shot of .12 bore gun or revolver from very close range on the said part of the body with all probability would have caused damage on the lips, on the teeth and rest of the part and around the area of mouth. There would have been number of pellets traceable inside the mouth. According to the prosecution that there was no wound inside the mouth. I believe that by one fire shot from close range on the said would have severe damage to number of tissues coupled with the presence of pellets inside the mouth and surrounding part. Alternative, there would be an exit wound which was not in the present case. Thus with all responsibility, I have no hesitation to say that the story of prosecution to the extent of second fire shot by Akhtar Hussain on the mouth of the deceased is false and has no substance in the light of medical evidence. I am persuaded by principle that man can tell a lie but not facts. Here the facts pertaining to this injury are so vital that the prosecution story to this extent is not accepted. 27. I do admit that principle of falsus in uno, falsus in omnibus is not applicable in Pakistan and very rightly because of prevailing conditions of our society. In the present case, I have to look forward to apply the guiding dictates of the Superior Courts to separate the chaff from grain otherwise there is possibility of injustice.
---
## Page 7
28. In this case the prosecution has sent three accused to face trial. Set of evidence against them is almost the same but the doctrine of falsus in uno, Falsus in omnibus, cannot be made applicable and to do justice it demands to separate the chaff from grain. Mir Kabal's fire hitting on the chest of the deceased stands fully proved. Though the prosecution evidence, especially this aspect of the case is supported by medical evidence and above all the motive is attributed to him alone. Whereas the case of Akhtar Hussain is concerned, who was allegedly armed with .12 bore pistol, lacks certain pre-requisite to believe the version of the prosecution that he was present and he used his .12 bore pistol while the deceased was lying on the ground. Especially in this regard the medical evidence has gone counter to the vision to believe that it can be an independent fire. Proportionally the nature of the injury and its dimension is such that it was nothing else but a stray pellet's injury and this could be possible with the fire of co-accused Mir Kabal. The availability of fire wad is a piece of evidence from which the calculation is that it was fired within six feet distance. Had there been an independent fire with .12 bore and from a close range there would have been heavy damage and grievous injuries causing heavy loss inside the mouth. There was also possibility of either exit wound orextensive damage inside the mouth. These all factors being absent no other conclusion cannot be drawn except that this part of story narrated by the prosecution witnesses is not believable. In this regard a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.